The Second Amendment In A World Of President Biden, VP Harris, And Justice Barrett

Former US Attorney and guest columnist Kip Crofts writes: "It is futile to try to manage human behavior (violence) by trying to control inanimate objects (guns). It just doesnt work."

C.A. “Kip” Crofts

November 11, 20208 min read

Kip crofts edited
(Cowboy State Daily Staff)

By C.A. “Kip” Crofts, guest columnist
Crofts is a former U.S. Attorney for Wyoming

In the public policy debate in America today, probably no issues are more controversial than abortion and gun control.  

Generally, views on the gun issue follow red/blue lines, with the red side believing they have a right to defend themselves and their families and businesses, while blue folks seem to hate and fear guns more than they do the people who pulled the trigger.  

Although this seems to be changing with even blue folks buying guns now when they hear about riots, calls to defund the police, and news about police who fail or refuse to respond to 911 calls.

Both President-elect Biden and Vice-President elect Kamala Harris made it clear that they want more gun control.  On the Joe Biden website they include fifteen pages of a plan for all the gun control laws they plan to pass. 

Former U. S. Rep. Beto O’Rourke, who competed in the early primaries for President said, “Hell yeah, we’re going to take your AR-15.  If it’s a weapon that was designed to kill people on the battlefield, we’re going to buy it back.”  Later, when Beto dropped out of the race and endorsed Biden, Biden said to Beto, “You’re going take care of the gun problem with me.  You’re going to be the one who leads this effort.” 

Kamala Harris said over and over that, “Weapons of war have no place in a civil society.”  

It is important to point out for these folks that the semiautomatic AR-15 type rifle that they are talking about, owned by millions of law-abiding Americans, has never been used as a “weapon of war” by the US Military or any other military force in the world. They seem to be talking about the M-16 military rifle that is already illegal for civilian use because it is a fully automatic (machine gun). This is a common falsehood used by gun control advocates, and even some federal judges, who either don’t know the difference or are willing to lie about it to support their position.   

The Biden platform proposes to reinstall the 1994 Assault Weapons Ban, which everyone agrees had no measurable effect on crime. The old law allowed continued possession of guns already owned but now he goes further and says he will also get rid of existing rifles with a “buy back” program.   This sounds friendly enough, but it is clear the owner would not have a choice in the matter, and it also does not explain how the government can “buy back” something it never owned.

There are a number of other proposals in the platform that are less well-known but equally concerning to the millions of law-abiding gun owners in America. 

I have written a book entitled, “A Few Commonsense Gun Laws – Is There Such a Thing and Can They Work?”  This is based on a lifetime of experience with guns and gun laws as an Army officer with service in two wars, a law enforcement officer, a federal prosecutor and US Attorney.  

Generally, my answer to both questions is “no.”  In that book I discuss current and proposed gun control laws, and explain why they either don’t work or are unconstitutional, and usually are both. If we spent more time identifying and controlling dangerous or mentally ill people, and less time worrying about inanimate objects, such as guns, cars, hammers, knives, shoes and golf clubs, all of which can and have been used as dangerous weapons, we’d be more effective, more intelligent, and more honest.  If we take a gun away from a dangerous person all he has to do is get another. We arrest drunk drivers – not the cars they drive.

It is futile to try to manage human behavior (violence) by trying to control inanimate objects (guns).   It just doesn’t work. 

These laws “infringe” (the operative word in the Second Amendment) upon the rights of the millions of gun owners who do not commit crimes with their guns, while doing nothing to prevent criminal violence by a tiny minority of criminals who are willing to ignore all laws, including those regulating guns.   

For example, does anyone think that a person planning to go to a school and kill children will be deterred by a sign announcing, “Gun Free School Zone?” 

Or does anyone think that a violent fugitive will try to buy a gun knowing that he will have to provide a photo ID and submit to an FBI background check?  

Of course, not – he’ll steal it or pay someone to buy it for him. These laws are not only unworkable, but unjust because too often they punish people severely for mere possession of a gun when it is clear that they had no intention of doing any harm to anyone with the gun. 

With a diminished majority in the House and at best a tie in the Senate, is there any likelihood President Biden will have any success in tilting this windmill? And if he does, what will happen when the laws get to the Supreme Court? 

Since the landmark opinion by Justice Scalia in 2008 in the Heller case held that citizens have a right to possess guns for personal defense, the Court has been strangely silent on a host of subordinate issues deciding the limits of that right.  I don’t know but suspect Chief Justice Roberts, who joined Scalia in the Heller decision, does not want to rule again in favor of gun rights, then read about a school shooting the next day.  But judges do that all the time, as when they hold that a confession by a murderer was taken in violation of the Constitution and may not be used in his trial. It is their job to follow the Constitution – not the opinion page of the New York Times.  

It is embarrassing the way the Supreme Court has allowed the lower courts to fly all over the map on those issues.  The worst example may be laws allowing the police to decide who has a “need” to exercise this constitutional right by carrying a gun for defense of self and family.  

Some states say that a general desire for protection, without some specific threat, is not sufficient.  So, I guess you call the police office that approves gun permits while the person is breaking down your door when you can describe a “need?”  What other provision of the Bill of Rights is subject to such arbitrary control by police?  Would we tolerate this government intrusion in any other context?

I suspect this may change with the confirmation of Justice Amy Coney Barrett to the Court.   She has demonstrated in at least one case that she takes the Second Amendment seriously.   

Wyoming prohibits felons from possessing firearms, as does federal law.  But the Wyoming law limits that prohibition for a short list of violent felonies, whereas the federal law prohibits all felons from having guns.   I argued in my book that federal law was not constitutional.  

To abridge a clearly stated constitutional right, the government must show at least that the law has a “rational basis.”  Conviction of a violent felony shows a predisposition for violence.  But conviction of some innocuous white-collar crime proves no such thing.  

There is simply no good reason for keeping Martha Stewart from having a skeet gun.  

I’m sure Justice Barrett never heard of me or read my book, but in a dissenting opinion she wrote while still a judge on the Seventh Circuit Court of Appeals, Judge Barrett expressed that same opinion, arguing that a person convicted of mail fraud has not demonstrated that he is dangerous.  This opinion greatly disturbed the Democrats on the Senate Judiciary Committee considering her nomination who will not be happy until no American citizen has any right to bear arms.  

That opinion by Justice Barrett shows that there are now five justices who take the Second Amendment seriously and I believe the amendment will do just fine now unless Democrats are successful in stacking the Supreme Court to put Justice Barrett in the minority.  

But Sen. Joe Manchin, Democrat from West Virginia, has already said he’ll vote against that and any change in the filibuster rule.  So, it looks like the Second Amendment may survive another onslaught by politicians who haven’t read the Constitution or thought much about what it says, why it says it, and how important it is to sustain a free nation. 

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C.A. “Kip” Crofts